Emmanuel Onwubiko: Killing Nigerian judiciary softly

Emmanuel Onwubiko: Killing Nigerian judiciary softly

The year 2019 would for a very long time to come, remain one of the most treacherous seasons for Nigeria’s judiciary going by the self-inflicted but externally induced credibility catastrophe that befell it and successfully beheaded the once envied independence of that strategic arm of government.

It started from small rumors and grew to a giant which later snow balled into a hydra-headed monster.

Although the problems associated with corruption in the judicial arm of government is as old as one can possibly hazard a guess, but this malaise of corruption was exactly the weapon which was deployed by some politicians just before the year 2019 general election to witchhunt the then chief justice of Nigeria Walter Onnoghen just as the well-funded campaign of calumny orchestrated from the executive arm of government culminated in the kangaroo trial of the then chief justice of Nigeria.

The executive arm of government that masterminded the removal of the head of the judiciary through extra-constitutional ambush and a sham prosecution which was nothing less than a vicious persecution was however aided by some forces embedded within the judiciary to achieve this classical political coup against judicial independence.

The National judicial council which was hijacked by forces affiliated with the executive was eventually the chief executioner of that plot which resulted in the removal of the then embattled chief justice of Nigeria.

I had stated that the entire crises which engulfed the judiciary this year began as rumors because the rumor mills were aflamed with stories that the political party controlling the top echelons of government at the center which is All Progressives Congress (APC) was jittery that with a highly unpredictable chief justice of Nigeria in the person of Justice Onnoghen, it would be politically suicidal to let him stay on as chairman of the election Appeal Tribunal in the event that the 2019 presidential election becomes marred in litigation which is what it has now become as predicted by those who plotted the destabilization of the once cohesive judiciary.

What these plotters did so as to quicken the unseating of Justice Onnoghen was to recruit some ghost civil society stakeholders who connived with the powers that be at the code of conduct Bureau to obtain the declaration of assets made by the then chief justice of Nigeria and proceeded to allegedly forge certain aspects of these declarations to make it look like the then chief justice of Nigeria was a super billionaire who failed to make the correct declarations of his assets just before he was sworn in.

It would be noted that this same code of conduct Bureau had severally denied many requests brought under freedom of information Act demanding the declaration made by virtually all top cabinet level officials currently serving.

Shockingly, this same code of conduct Bureau was quick to release all the information relating to the assets’ declaration made by the then chief justice of Nigeria, who is the first southerner to head the judiciary in 30 years. Northern moslems had headed the judiciary since the early 80’s or so. However, Justice Onnoghen maintained that what was tendered as his declaration of assets were forged. He was never granted fair hearing.

Justice Walter Onnoghen told the Code of Conduct Tribunal (CCT) sitting in Abuja that the two asset declaration forms he submitted to the Code of Conduct Bureau (CCB) were tampered with.

He told the three-member panel of the tribunal, headed by Danladi Umar that the two forms he submitted to the Bureau in 2014 and 2016 were mutilated and in loose form.

Justice Onnoghen made the allegation while cross-examining a prosecution witness during the hearing of the hurriedly concluded trial when the federal government opened its case in the six-count charge of non-declaration of assets preferred against him by the federal government.

Onnoghen’s allegation came when the first prosecution witness, a senior investigation officer with the CCB, James Akpala sought to tender the two asset forms investigated by the Bureau.

The attention of the defense team, led by Chief Adeboyega Awomolo (SAN) was drawn to the two asset declaration forms, which the prosecutions wanted to tender as evidence and the suspended CJN was consulted for verification of the forms.

Onnoghen, after glancing through the forms spoke through his counsel, to the effect that the forms have been tampered with and that the tribunal will be addressed on the issue.

In his evidence in chief, the witness narrated how the CCB referred a petition from the Center for Anti-corruption Initiative signed by one, Dennis Aganya (a one time media aide of Muhammadu Buhari) referred to him and two others on January 10, 2019 during which his team met with Justice Onnoghen, obtained a statement from him and also applied for his account details with a commercial bank. The witness added that the investigation was concluded the following day the 11th of January when the team’s report was prepared.

Those who instigated the overthrow using a kangaroo trial of the judiciary were motivated by politics of the 2019 polls and geopolitical considerations. Mind you Atiku Abubakar the candidate of PDP enjoys overwhelming supports of Southerners in which case the APC feared that Justice Onnoghen may swing any post election litigation to favour their opponent.

Also, the president has never hidden his disdain for the judicial arm of government which according to him needed to be weeded of corruption.

The president gave his clearest signals of going after the judiciary in his first year by using the Department of State Services (DSS) and the Economic and Financial Crimes Commission (EFCC) to embark on the extensive campaign to decapitate the independence of the judiciary.

His aversion for an independent judiciary is likened to his longstanding military dictatorial tendencies which he exhibited earlier when he ruled as a military dictator in the mid 1980’s.

So, as soon as he got elected as a civilian president, the current president wasted no time to make a public declaration of intent to go after the judiciary hiding under the guise of fighting corruption.

As far back as February 2016, barely few months after he was inaugurated, President Muhammadu Buhari said as far his administration’s ongoing anti-corruption fight was concerned; the nation’s judiciary remained his major headache.

He said the fight against corruption in Nigeria could only be effectively tackled with the strong support of the judiciary.

According to a statement by his Special Adviser on Media and Publicity, Mr. Femi Adesina, the President spoke in Addis Ababa at a town hall meeting he held with Nigerians living in Ethiopia.

He said far-reaching reforms of the judiciary remained a key priority for the present administration.

Buhari said his travails in courts during his failed bid for the nation’s Presidency on three occasions, which took him to the Supreme Court three times, were clear indications that the judiciary needed urgent reforms.

The President stated, “On the fight against corruption vis-à-vis the judiciary, Nigerians will be right to say that is my main headache for now.

“If you reflect on what I went through for 12 years, when I wanted to be the President, I attempted three times and on the fourth attempt, through God and the use of technology, it was possible for Nigerians to elect an APC candidate as President.

“In my first attempt in 2003, I ended up at the Supreme Court and for 13 months, I was in court. The second attempt in 2007, I was in court close to 20 months and in 2011, my third attempt, I was also in court for nine months.

“All these cases went up to the Supreme Court until the fourth time in 2015, when God agreed that I would be President of Nigeria.”

Reading through this statement, it would then appear that the fight against the independence of the judiciary may have been his own way of paying back that arm of government for his ordeals in the different court systems in almost all his attempts at wrestling presidential power from the incumbents.

The first salvo was to deploy armed security forces to invade the private residences of judges which resulted in the prosecution of some of these judges. Some of the justices of the Supreme Court whose homes were illegally invaded by the DSS under the direction of the president were never charged to court. Those who were charged were never found guilty.

The fact that the executive arm of government failed to provide solid evidence of corruption against the judges, may have informed the decision to look the way of code of conduct Tribunal which is headed by Mr. Danladi Umar who is facing a #10 million bribery charges by the EFCC.

In one of the charges, presidency alleged that before he was sworn in as Justice of the Supreme Court of Nigeria) he breached the code of conduct for public officers by omitting to declare a domiciliary (US Dollars) account No. 870001062650 maintained with Standard Chartered Bank of (Nig) Ltd, Wuse 2, Abuja, which is being operated since 2011 and your thereby contravened the provisions of section 15(2) read along with section 15(1) 15(1) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under section 23(2) (a), (b) and (c) of the same Act. Other charges were framed thus:“That you, JUSTICE WALTER NKANU ONNOGHEN, CJN, GCON being a public officer as Justice of the Supreme Court of Nigeria who is under a duty to declare his assets to the Code of Conduct Bureau Chief on or about 14th December, 2016, falsely declared your assets in your Declaration of Assets Form CCB 1; (after you were sworn in as Justice of the Supreme Court of Nigeria) by omitting to declare a domiciliary (Euro) account No. 93001062686 maintained with Standard Chartered Bank of (Nig) Ltd, Wuse 2, Abuja, which is being operated since 2011 and your thereby contravened the provisions of section 15(2) read along with section 15(1) 15(1) of the Code of Conduct Bureau and Tribunal Act Cap C15 LFN 2004 and punishable under section 23(2) (a), (b) and (c) of the same Act”.

Meanwhile, Justice Onnoghen, on January 14, declined to appear before the Mr. Danladi Umar-led three-member CCT panel to be arraigned by the executive arm.

Instead, the CJN, through a consortium of lawyers led by a former President of the Nigerian Bar Association, Chief Wole Olanipekun, SAN, and a former Attorney General of the Federation, Chief Kanu Agabi, SAN, challenged the jurisdiction of the CCT to handle the case against him.

He contended that Buhari’s failure to channel the petition against him, as well as the outcome of the investigation that was purportedly conducted on his assets declaration forms by the CCB, to the National Judicial Council, NJC, before it rushed the case to the CCT had rendered the charges a nullity.

The CJN further argued that FG failed to abide by existing judicial precedent as encapsulated in a recent Appeal Court decision in Nganjiwa vs. Federal Republic of Nigeria (2017) LPELR-43391(CA), to the effect that any misconduct attached to the office and functions of a judicial officer, must first be reported to and handled by the NJC, pursuant to the provisions of the laws.

He maintained that only after the NJC has pronounced against such judicial officer could prosecuting agencies of the Federal Government proceed to initiate a criminal proceeding.

Placing reliance on a recent decision of the CCT on a similar charge FG lodged against another Justice of the Supreme Court, Sylvester Ngwuta, the CJN’s legal team, insisted that FG’s decision to sideline the NJC, stripped the tribunal off its jurisdiction to entertain the instant case.

The same day, FG, filed a motion for the tribunal to compel Justice Onnoghen to step aside as the CJN and Chairman of the NJC, and for him to hand over to his next in command, Justice Tanko Muhammad.

On January 21, in a two to one split decision, the CCT panel, said it would proceed with the trial, despite the court orders.

Dissatisfied with the decision, Onnoghen, proceeded to the Abuja Division of the Court of Appeal where he secured an order that suspended further proceedings at the CCT, pending the determination of an appeal he lodged against his trial.

In the appeal he lodged on January 15, Onnoghen, argued that the Mr. Danladi Umar-led tribunal erred in law when it held that the preliminary objection he filed to challenge the competence of the charge, would be heard alongside the motion FG filed for him to step-aside.

Onnoghen insisted that it was wrong for the tribunal to hear and determine FG’s motion when its jurisdiction to entertain the substantive charge was being challenged.

He therefore prayed the appellate court to set-aside the decision of the CCT as contained in a ruling its Chairman delivered on January 14.

Meantime, before the appeal could be heard, Justice Onnoghen, on January 18, filed the motion the appellate court, on January 24, relied upon to temporarily suspend further proceedings in the case. The Tribunal refused but railroaded to a pre-determined decision.

Clearly, the whole exercise of prosecution of Onnoghen was a sham. The Appeal court kept refusing to hear the appeals of Onnoghen thereby reinforcing the allegation that Justice Zainab Bulkachuwa who heads the Appellate court was an interested party just like the duo of justice Tanko who was named acting chief justice of Nigeria and the ethically challenged chairman of code of conduct Tribunal who are all from Bauchi state.

The coup against the judiciary was clinically executed and aided allegedly by the National judicial council whose control was handed over to retired court of Appeal’s president Justice Abdullahi Umaru who is a kinsman of president Buhari accused of been the brain behind the entire fiasco.

As far as most Nigerians are concerned, the then chief justice of Nigeria was not given fair hearing. This much was admitted by a cowardly composed panel of court of Appeal which belatedly ruled that the code of conduct Tribunal erred in law by granting an ex parte application which purportedly dethroned Onnoghen, thus making way for the hand-picked acting chief justice of Nigeria Justice Tanko to take over.

Why was the control of NJC handed over to Justice Abdullahi who is very close to president Buhari?

Why did the NJC not compel both the then embattled CJN and the hand-picked acting CJN to quit the bench since they were the major characters that symbolized the self-inflicted but externally funded crisis of confidence that has torn the judiciary into shreds?

This conflict of confidence and capitulation to the external manipulation of the judiciary by the executive branch will take years to heal. Judiciary must therefore heal itself quickly.

Judicial independence is an important component of modern democracy, as several researches have attested to.

Judicial independence says authoritative scholars is crucial to the doctrine of separation of powers, the sustenance of the rule of law and the protection of human rights in the words of a Canadian jurist;

“Judicial Independence is essential for fair and just dispute resolution in individual cases and it is the life blood of democratic constitutionalism. Without judicial independence there can be no preservation of democratic values.”

“Historically, the Act of Settlement of 1701 recognized that the independence and impartiality of the judiciary could not exclusively depend on only the personal integrity and resilience of the individual judge. ..”

“Accordingly, it was necessary to institutionalize the independence of the judicial system. The Act of Settlement created for the first time a basis for judicial security of tenure that was later on reinforced by legislations that guaranteed remuneration. These statutes institutionalized judicial independence.”

As established in the foregoing by both Chief Justice Lamar in Beanregand vs Canada (1986) 2 S.C. R 56, 70 and JJ Spigleman A.C the Chief Justice of New Soyth Wales in judicial independence;Purposes and threats, 7th Worldwide common law judicial conference, London:April 2007 as reported in the 2007 All Nigerian Judges’ conference), personal independence is insufficient and incomplete unless it is accompanied by the institutional independence of the entire judicial system, so says a reputable jurist.

It is imperative to assert that institutional independence refers to the fortification of the judiciary in order to ensure that its functions are not unduly influenced or defined by the other arms of government.

An independent judiciary, experts argue, requires that individual judges are independent in the exercise of their powers, and that the judiciary as a whole is independent, with its sphere of authority protected from the influence, overt or insidious, of the other arms of government.

As asserted in the foregoing opinions of experts, an independent judiciary also requires protection from more systemic influences the type we alluded to in the above classical case of a sham and mob trial of the immediate past CJN who was booted out because the Presidency couldn’t get him to do their bidding.

“A fundamental aspect of this institutional independence is ensuring that the judiciary receives adequate funding. Just as salary protection is necessary to individual judges’ independence; the overall financing issues can influence the work of the judiciary as a whole. Judicial independence is not an end in itself, but a means to an end. It is the kernel of the rule of law, giving the citizenry confidence that the laws will be fairly and equally applied.”

It is importantly argued that Judicial independence also allows judges to make decisions that may be contrary to the interests of the other branches of government.

The way it is now the judiciary in Nigeria is sick and is controlled by persons with questionable historical ties to either the Presidency or the ruling party at the center.

The Court of Appeal is worst affected with the head accused of partisanship given that both her husband and Son are staunch members of the inner caucuses of APC. Judiciary must heal itself or perish.